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2017 (11) TMI 1845

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..... ourt in WIPRO Ltd. vs. DCIT [ 2015 (10) TMI 826 - KARNATAKA HIGH COURT] has held as In view of the provisions of Section 90 of the Act, agreements with foreign countries DTAA would override the provisions of the Act. In view of the said finding, it is clear that there is obligation on the part of the respondents to deduct tax at source under Section 195 of the Act. Further, it is stated that obligation to deduct TDS u/s 195 arises only when there is a sum chargeable under the Act and not all payments are subject to TDS. - Decided against the assessee. - I.T.A No. 595/Bang/2016 - - - Dated:- 17-11-2017 - SHRI. INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI. LALIT KUMAR, JUDICIAL, JUDICIAL MEMBER For the Assessee : Shri. .....

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..... has followed the judgment of Hon'ble Karnataka High Court rendered in the case of CIT vs. Samsung Electronics Co. Ltd. as reported in 245 CTR 481. He submitted that by a later judgment of Hon'ble Karnataka High Court rendered in the case of WIPRO Ltd. vs. DCIT as reported in 382 ITR 179, similar issue was decided in favour of the assessee by following the earlier judgment of the same High Court rendered in the case of the same assessee in ITA 507 of 2002 ITA No. 1388/Bang/2013 on 25.08.2010 and it was held that no disallowance can be made u/s 40 (a) (i) of I. T. Act in respect of software imported which is in the nature of Royalty u/s 9 (1) (vi) of I. T. Act. He submitted a copy of both these judgments of Hon'ble Karnataka High .....

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..... s and perused the material on record. We find that the coordinate bench in the matter of Intertec Software Pvt. Ltd., vs ITO, dt.13.10.2017, wherein the author of this order was the co-author, after relying upon the judgment of the jurisdictional High Court in the matter of CIT (Intl.Taxn) v. Samsung Electronics Co. Ltd [(2011) 203 Taxman 477] and distinguishing the later judgment of the jurisdictional High Court in WIPRO Ltd. vs. DCIT as reported in 382 ITR 179, has held as under : 4. We have considered the rival submissions. First, we examine the applicability of the first judgment of Hon'ble Karnataka High Court rendered in the case of WIPRO Ltd. vs. DCIT (Supra) rendered on 25.08.2010. In this case, the substantial questio .....

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..... e present case. 6. Now, we examine the applicability of the second judgment of Hon'ble Karnataka High Court rendered in the case of WIPRO Ltd. vs. DCIT (Supra) rendered on 25.03.2015. As per this judgment, in Para 171, it was held that in earlier judgment dated 25.08.2010, similar question was decided in favour of the assessee and against the revenue and therefore, in those appeals also, the issue was decided in favour of the assessee. We have already seen that the decision dated 25.08.2010 is not on this aspect that it is Royalty or not and therefore, this judgment is not relevant in the present case. Accordingly, this later judgment dated 25.03.2015 is also not relevant. 7. There is no dispute that the present issu .....

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